Excerpt:.....from date of death of defendant--held, district judge was justified in granting exemption after 90 days of death of defendant.;the discretion tinder order 22, rule 4(4) c.p.c. can be exercised even after the expiry of 90 days from the date of the death of the defendant.;the learned district judge was justified in granting the exemption even after expiry of 90 days from the death of nand kishore.;revision dismissed - - order 22, rule 4(3) of course states that when in the time limited by the law no application is made under sub-rule (1) the suit s(sic)all abate against the deceased defendant but the newly added sub-rule (4) carves out an exception to this in as much as it clearly lays-down that when an exemption is thus granted, judgment may in such case be pronounced against the said..........be granted by the court because the application for such an exemption had not been filed within 90 days of the death of the defendant(sic) as a matter of fact there is a divergance of opinion between various high courts in this respect. lakshmi chara(sic) panda and anr. v. satyabadi bohra and ors. : air1964ori39 , dhruba bhai and ors. v. brundabati and ors. : air1973ori55 and hiru sepai v. sultan sepai : air1976cal1 propounded the view that the application for such exemption has to be filed within 90 days of the death of the defendant because thereafter the suit automatically abates as against the deceased defendant and the court is left with no power to exempt the plaintiff from bringing the legal representatives of the deceased on record.5. on the other hand velappen pillai v......

Judgment:

S.K. Mal Lodha, J.

1. This is defendant's revision against the order of the learned District Judge, Jalore dated 21-10-19(sic)83 granting exemption to the plaintiff from bringing the legal representatives of the deceased defendant No. 7 Nand Kishore on record.

2. Nand Kishore defendant No. 7 had died on 16-8-1982 and an application for bringing his legal representatives on record had not been made within 90 days. Thereafter an application was made for that purpose 25-2-1983. Later the plaintiff also moved an application under Order 22, Rule 4(4) CPC on 22-4-1983 praying for exemption from bringing the legal representatives of the deceased Nand Kishore on record. It is an admitted fact that Nand Kishore has not filed any written statement nor had appeared before the court to contest the suit. The Court granted the exemption as prayed.

3. I have heard learned Counsel for the parties.

4. The question before me is whether exemption under Order, 22 Rule 4(4) C.P.C. could not be granted by the court because the application for such an exemption had not been filed within 90 days of the death of the defendant(sic) As a matter of fact there is a divergance of opinion between various High Courts in this respect. Lakshmi Chara(sic) Panda and Anr. v. Satyabadi Bohra and Ors. : AIR1964Ori39 , Dhruba Bhai and Ors. v. Brundabati and Ors. : AIR1973Ori55 and Hiru Sepai v. Sultan Sepai : AIR1976Cal1 propounded the view that the application for such exemption has to be filed within 90 days of the death of the defendant because thereafter the suit automatically abates as against the deceased defendant and the court is left with no power to exempt the plaintiff from bringing the legal representatives of the deceased on record.

5. On the other hand Velappen Pillai v. Pa(sic)appan Panickar and Ors. : AIR1969Mad309 , S.A. Rahim and Anr. v. Rajamma and Ors. : AIR1977Kant20 , Nepal Chandra Saha v. Rebati Mohan Saha and Ors. AIR 1979 Gauhati 1 Rajnath Sahgal and Ors. v. Shiva Prasad Sinha and Ors. AIR 1970 Patna 239 and Mohammad M(sic)ustadeen and Ors. v. Astab Ahamed AIR 1983 All. 368 lay-down that the power of the court to exempt the plaintiff from bringing the legal representatives of the deceased defendant who has not filed the written statement or having filed the same has not appeared to contest the suit at the hearing is not fettered by the limitation of 90 days after which the suit as against the deceased must be deemed to have abated and the court can even thereafter grant such an exemption. They have also observed that as a matter of fact no application for such an exemption is necessary and the court can of its own accord exercise its discretion in this respect.

6. When the provisions of Order 22, Rule 4(4) CPC are thus capable of more than one interpretation as has been taken by the various High Courts and the learned District Judge has adopted one of those interpretation, it cannot necessarily be held that the decision of the learned District Judge suffers from a patent error of jurisdiction and, therefore, no interference with its order in revision is called for and the revision deserves to be rejected on this ground alone. All the same I have considered the views of the different High Courts referred to above and I respectfully agree with the view propounded by Madras, Karnataka, Gauhati, Patna and Allahabad High Courts. It would not be necessary for me to recapitulate all the grounds set-forth in support of the view that the discretion under Order 22, Rule 4(4) CPC can be exercised even after the expiry of 90 days from the date of the death of the defendant. I may only add that a matter of fact when exemption is granted under Order 22, Rule 4(4) CPC, the question of abatement does not arise. Order 22, Rule 4(3) of course states that when in the time limited by the law no application is made under Sub-rule (1) the suit s(sic)all abate against the deceased defendant but the newly added Sub-rule (4) carves out an exception to this in as much as it clearly lays-down that when an exemption is thus granted, judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before the death took place. This by the legal fiction created by this Sub-rule (4) of Rule 4 of Order 22 CPC the deceased defendant would be deemed to be living even at the time of the judgment in a case in which an exemption under this provision is granted and when the judgment is deemed to have been pronounced as if it has been pronounced before the death of the defendant took place, the question of abatement envisaged under Sub-rule (3) of this Rule does not arise, in this view of the matter it clearly appears to me that the view taken by Madras, Karnataka, Gauhati, Patna and Allahabad High Courts is the better view and I respectfully agree with the same and adopt the same.

7. Therefore, the learned District Judge was justified in granting the exepmption even after expiry of 90 days from the death of Nand Kishore. The revision must, therefore, fail, and is hereby summarily rejected.